SUBORDINATE COURTS PRACTICE PAMPHLETS

Garnishee
Proceedings
 Garnishee
Proceedings
In the
Subordinate
Courts
This Practice Pamphlet was prepared by
The Subordinate Courts Working Papers Committee

© 1999 The Subordinate Courts of Singapore

 CONTENTS

PAGE

Chapter 1: Introduction……………………………………………………………….……….
Introduction 1

Applicable Law …………………………………………………………………………………… 1

Jurisdiction ……………………………………………………. …………………………………. 1
Effect of a Garnishee Order ………………………………..… ………………………………. 1

Chapter 2: Procedure ………………………………………………………………………….. 2

Commencement Procedure …………………………………. ………………………………… 2

Procedure Immediately After the Order Nisi has been Granted …………………………. 4
Service of the Order Nisi …………………………………… ………………………………… 5
on the Garnishee ………………………………………….. ……………………………….. 5
on the Judgment Debtor ……………………………………………………………………. 5
On the Return Date …………………………………………………………………………….. 5
the Garnishee is Absent …………………………………………………………………… 5
the Garnishee does not Dispute ……………………….. ………………………………. 6
the Garnishee Objects to the Order Absolute …………………………………………. 6
Claims of Third Persons ………………………………………………………………….. 6
Costs ……………………………………………………………………………………………… 7

Chapter 3 : Pre-requisites to a Garnishee Application ………………………………… 8

Garnishee within Jurisdiction ………………………………………………………………… 8

Debt Due or Accruing Due …………………………………………………………………… 9
Other Reasons at Law Why Attachment may Fail………………………………………… 10
Expressly Prohibited by Legislation …………………………………………………… 10
Operation of Law ……………………………………… ………………………………… 11

Chapter 4 : After the Order Absolute is Given ………………………………………… 12

 Garnishee Proceedings

CHAPTER 1 : INTRODUCTION

1.1 APPLICABLE LAW

The law governing garnishee proceedings is found in O 49 of the Rules of Courts (1997
Revised Edition) (hereinafter referred to as the ‘Rules’). All references to Orders or Rules in this
paper are references to the provisions in the Rules). As the local provisions are substantially similar
to the English position, guidance on this subject may be obtained from the English “Supreme Court
Practice 1999”.

1.2 JURISDICTION

The jurisdiction of the Subordinate Courts to make orders of attachment or garnishee orders
may have been unclear in the past. However, with the amendment to the Subordinate Courts Act,
Cap. 321 (Act No. 15/93),
15/93) it is now clear that District Courts (S
S 44) and Magistrates’ Courts (S 54)
have the necessary jurisdiction to make such orders.

1.3 EFFECT OF A GARNISHEE ORDER

A garnishee order absolute is in fact an order directed at the garnishee, requiring him to
release to the judgment creditor any moneys which he owes the judgment debtor.

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 Garnishee Proceedings

CHAPTER 2 : PROCEDURE

2.1 COMMENCEMENT PROCEDURE

i) An application for a garnishee order nisi is commenced by way of an ex parte Summons in

Chambers supported by an affidavit.

The applicant will have to lodge:

(a) ex parte Summons in Chambers - 2 copies

- praying that a return date be given for all interested parties to attend before the court.

- praying that in the meantime, all debts due or accruing due from the garnishee to the
judgment debtor be attached.

- that the sum attached be limited to a certain fixed amount1.

This particular sum usually consists of:

. amount of the judgment

. post judgment interest
. costs of the garnishee application itself – as provided for in Appendix 2, Part
III of O 59

The figure stated need not be a precise quantification. Only a rough estimate is required,
although there should be an allowance to ensure that the sum limited is not less than the actual
amount owing at the return date.

(b) An affidavit (in Form 99)

99 - 1 copy

- identifying the judgment to be enforced.

- stating the amount remaining unpaid. Paragraph 2 of Form 99 may however be
modified to read:
___________________________________________________________________________________
1
This is not prescribed for in the Rules but it is a useful practice which is followed in the English Queen’s Bench
Division as well.

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 Garnishee Proceedings

“The judgment still remains unsatisfied to the extent of $x and interest amounting to
$y as at a/b/c. Interest continues to run at the rate of z% per annum amounting to $d
a day”,

- stating that to the best of the information or belief of the deponent, “XYZ’ the
garnishee is within the jurisdiction and is indebted to the judgment debtor. The
sources of information or the grounds of belief should then be stated.

ii) If Form 99 is followed, few problems would arise. However, a fairly common error relates
to the requirement to state the sources of information or the grounds of belief that the garnishee is
indebted to the judgment debtor.

iii) A bare statement that the depondent believes the debt is owing or that he has been informed
that the debt is owing is insufficient. More particulars should be provided. For example:

a) the judgment debtor recently issued a cheque from XYZ Bank (the garnishee) dated a/b/c to
the judgment creditor (annexing copies of the cheque if available, and if unavailable,
explaining what has happened to it).

b) the judgment debtor had in some written contract or other document, made reference to an
account he had with a particular bank or debts owed to him from other parties (annexing
copies of the relevant documents if available, and if unavailable, explaining what has
happened to them).

c) The judgment debtor informed the court during the examination of judgment debtor
proceedings that XYZ owed him some money.

d) The garnishee has informed the judgment creditor of the debt owed to the judgment debtor
(annexing any letters to the effect or giving details of the communication made by the
garnishee).

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 Garnishee Proceedings

iv) Once the above are filed, the documents will be placed before a Deputy Registrar for his
consideration. If everything is in order, an order in terms will be granted. If the application is
defective in any way, the Summons in Chambers will be returned to counsel with a hearing date for
the summons stamped on it2. The current hearing date is approximately one to two weeks from the
date of the filing of the application. On this ex parte hearing date, the counsel for the judgment
creditor will be informed of the defect in his application. After the defect has been rectified, either
immediately or after an adjournment, and the Deputy Registrar is satisfied that the application is in
order, an order in terms for the garnishee order nisi application will be granted.

2.2 PROCEDURE IMMEDIATELY AFTER THE

ORDER NISI HAS BEEN GRANTED

i) Once the order nisi has been granted, a draft order of court in Form 98 should be prepared
and submitted to the Summons in Chambers counter (currently at the Civil Registry at Apollo
Centre) for vetting. Once the draft is approved by the counter, counsel for the judgment creditor
should file two3 copies of the finalised order. Upon filing, the orders will be perfected immediately
and the sealed copy of the order returned to counsel.

ii) A return date for the hearing of the garnishee order absolute application will be stated in the
order. Currently the hearing date is approximately four weeks from the granting of the order nisi.

2
This is presently done by placing the summons in the ‘out’ tray of the Civil Registry at Apollo Centre. Counsel
or their clerks may collect them from here.

3
If there is more than one garnishee, a separate order should be prepared for each garnishee. Each order should
be individually tailored with only the name of one particular garnishee on the order. See The Supreme Court
Practice 1999, 49/2/5.

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 Garnishee Proceedings

2.3 SERVICE OF THE ORDER NISI

i) On the Garnishee

The order nisi must then be served on the garnishee personally. This must be done at least
seven days before the return date4. The service of this order is crucial as it is from the time of
service that the garnishee’s hands are bound. It acts as an injunction and ‘freezes the sum… until the
order is made absolute or is discharged’5.

ii) On the Judgment Debtor

Service should also be effected on the judgment debtor at least seven days before the return
date, but this need only be done by ordinary service6.

2.4 ON THE RETURN DATE

The following are the possible situations:

i) The Garnishee is Absent

As an order absolute has serious consequences for the garnishee, the judgment creditor must
satisfy the court that the order had been served on the garnishee personally, or, if an order for
substituted service had been granted, in compliance with that order. This may be done through an
affidavit of service.

Only after the court is certain that the garnishee had adequate notice of the proceedings and
yet failed to turn up can an order absolute be made in favour of the judgment creditor. The
appropriate form in Form 100 of the Rules should be used.

The court has jurisdiction to set aside an order absolute made in the garnishee’s absence7.

4
O 49 r 3(1)(a)
5
per Lord Denning MR in Choice Investments v Jeromnimon
[1981] 2 WLR 80 at 83. See also O 49 r 3(2).
6
O 49 r 3(1)(b)
7
Loo Choy Meng v Ong Cheng Hoe [1990] 1 MLJ 445, 445 relying on the decision of the Malaysian Federal Court
sitting in Singapore in United Overseas Bank Ltd v Chung Khiaw Bank [1968] 2 MLJ 85.

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 Garnishee Proceedings

ii) The Garnishee does not Dispute the Order Nisi

In such a case, the garnishee may attend the hearing and inform the court that they are
holding $x as a debt owed to the judgment debtor and that they have no objection to an order
absolute being made for that sum. If the court is satisfied that the garnishee is not disputing the sum,
then an order absolute will be made.

Alternatively, if there is no money held by the garnishee, the judgment creditor must attend
and ask for the order nisi to be discharged.

iii) The Garnishee Objects to the Order Absolute

In this situation, the court can summarily decide the issue. If there is an issue of fact, the
court has the discretion to order that the issue be sent for trial, either before a Judge or the Registrar.
The court will provide all necessary directions for the trial including setting out the issues to be
tried. The directions will usually conform to Form 101 of the Rules, with the necessary
modifications.

If there is conflicting evidence in the affidavits given by the garnishee and the judgment
creditor, then the matter will be sent for trial and will not be decided summarily8.

iv) Claims of Third Persons

The onus is on the garnishee to inform the court of any claim or lien over the moneys which
is known to him9.

If there is any such claim by a third person over the debt sought to be garnished, the court
can order that the person attends court and dispose of the issue summarily, or deal with it in a
similar way for cases where the garnishee objects to the order absolute being made.

8
Kiyoso Metal Co. Sdn Bhd v Intersistem Development [1987] 2 MLJ 244.
9
The Supreme Court Practice 1999, 49/6/1, 49/3/10.

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 Garnishee Proceedings

2.5 COSTS

i) Where an order absolute is made, the Rules prescribe the amount of costs which should be
awarded10. The costs payable to the judgment creditor and to the garnishee are to be satisfied from
the sums retained by the garnishee. Only the sums remaining after these costs are satisfied will go
towards extinguishing the judgment debt of the judgment debtor11.

ii) In all other situations, costs will be in the discretion of the court. Where there is no debt due
or accruing due from the garnishee, the order nisi is usually discharged with no order as to costs12.

__________________________________________________________________________________
10
O 59, Appendix 2, Part III, item 4.
11
O 49 r 10, O 59, Appendix 2, Part III, item 4(a).
12
The discretion with regards costs is a wide one. In an appropriate case, the court may order the judgment debtor
to bear the costs of the garnishee proceedings – see T Wright & Son (Hull) Ltd v Westoby (Saffman(Saffman &Co.,
garnishee) [1972] 3 AER 1078, where Sachs L.J. also made some observations on the approach to be taken in
the award of costs where the garnishee proceedings are unsuccessful.

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 Garnishee Proceedings

CHAPTER 3 : PRE-REQUISITES TO A
GARNISHEE APPLICATION

A judgment creditor may commence garnishee proceedings against a judgment debtor only if:

i) the garnishee is within jurisdiction;

ii) there is a debt due or accruing due to the judgment debtor from the garnishee; and

iii) there is no other reason at law why the attachment of the debt should not be allowed.

3.1 GARNISHEE WITHIN JURISDICTION

i) if the garnishee is not within the jurisdiction, no garnishee order is possible. However, a
firm having one or more partners resident abroad can be subject to garnishee proceedings if it carries
on business in Singapore13.

ii) Even where the garnishee is within the jurisdiction, the court will not garnish a debt if the
debt is recoverable only outside the jurisdiction and there is a risk that the garnishee may have to pay
the debt twice over14.

___________________________________________________________________________________
13
O 77 r 7(1). However, the order nisi should be served on a member of the firm who is within the jurisdiction,
or on the person having control or management of partnership business, ibid. r 7(2).
7(2)
14
See The Supreme Court Practice 1999, 49/1/8.

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 Garnishee Proceedings

3.2 DEBT DUE OR ACCRUING DUE

Occasionally, there may be a dispute as to whether a debt is in fact due or accruing due by
the garnishee to the judgment debtor. If there is no such debt due or accruing due, garnishee
proceedings cannot be taken out. For example where:

i) the debt is unconfirmed and is dependent upon some contingent event15;

ii) the judgment debtor has assigned the debt bona fide to a third party before the debt is
attached16; or

iii) future debts are involved17.

15
See for example Bank Bumiputra Malaysia Berhad v Hamzah Majid [1989] BLD Year Book, para 351;
Mohammad bin Abdullah v Fu Lee Development [1988] 3 MLJ 39; Dunlop & Rankel Ltd. v Hendall Steel
Structures Ltd [1957] 3 AER 344 at 347;347; cf. Lee Kam Chun v Sykt Kukuh Maju Sdn Bhd [1988] 1 MLJ 444;
Kedah Kelang Papan Sdn Bhd v Hansol Sdn Bhd [1988] 1 MLJ 434.
16
This is so even if the assignment was effected without the garnishee’s knowledge – Yeo Chiang Swee v United
Decorators [1933] MLJ 85, 85 see also Tay Way Boon v Omar Marican [1991] 1 MLJ 122. 122
17
The distinction between the case where there is an existing debt, payment whereof is deferred, and the case
where both the debt and the payment rest in the future must be noted. In the former case there is an attachable
debt, in the latter there is not – Bankes L.J. in O’Driscoll v Manchester Insurance Committee [1915] 3 KB 499
at 516,517. The issue of the garnishing of salaries is uncertain and would require a detailed discussion of
numerous cases and the Apportionment Act, Cap. 8. For the purposes of this paper, the garnishing of salaries is
currently permitted in the Subordinate Courts as long as the proper procedure (as set out in 2.1 to 2.4 herein) is
complied with and the applicable considerations (as set out in 3 herein) are satisfied.

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 Garnishee Proceedings

3.3 OTHER REASONS AT LAW WHY

ATTACHMENT MAY FAIL

There are situations where the prerequisites discussed above may be satisfied and yet the law
does not permit debts to be garnished.

i) Expressly prohibited by legislation

a) Government

O 73 r 12(1) and r 13(1)(a) expressly prohibit the judgment creditor from initiating garnishee
proceedings to enforce a debt against the government, or to make the government a garnishee18.
Where it is sought to enforce a judgment against a judgment debtor to whom the government owes a
debt, instead of applying for a garnishee order nisi against the government, the judgment creditor
may apply for an order restraining the judgment debtor from receiving money payable to him by the
government. The application should be taken out by Summons in Chambers supported by an
affidavit, setting out the facts giving rise to the application as well as identifying the debt allegedly
owed by the government. The summons must be served on the Attorney-General’s Chambers and on
the person being restrained at least four days before the return date19.

(b) Exchange Control Act

When the judgment creditor is outside the scheduled territories, as defined in Schedule One
of the Exchange Control Act, Cap. 99, permission must be sought from the Monetary Authority of
Singapore for the moneys to be paid to the judgment creditor. If this is not done, or if the Monetary
Authority of Singapore has given conditional permission and the conditions have not been complied
with, the court will not grant a garnishee order20.

18
See also S 31(4) of the Government Proceedings Act, Cap. 121.
19
see O 73 r 13(2).
20
see O 49 r 7.

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 Garnishee Proceedings

(c) Other Acts

Payments under the Workmen’s Compensation Act, Cap 35421, Pensions Act, Cap 22522 and
wages due to seamen23 are generally incapable of attachment.

ii) Operation of Law

Although not expressly prohibited by legislation, garnishee proceedings may sometimes fail
due to the operation of law.

(a) Where Attachment Would Be Unjust

Where the garnishee order would result in preference being given to the judgment creditor
over other creditors24, or where the debt is recoverable outside the jurisdiction and the garnishee
would be liable to an action in that foreign country for the same debt25, the court may refuse to allow
the attachment of debts.

(b) Where The Debt Is Due To The Judgment Debtor

As Well As to Another Person Jointly

When the debt owing by the garnishee is due to the judgment debtor jointly with another
person, the debt cannot be attached26.

(c) Bankruptcy Or Winding Up Of The Judgment Debtor

A creditor who has attached any debt due to the judgment debtor cannot retain the benefit of
the attachment against the Official Assignee when the judgment debtor becomes bankrupt or against
the liquidator when the judgment debtor goes into winding up, unless the judgment creditor has
completed the attachment27.

21
S 10
22
S 11
23
S 60(1)(a), Merchant Shipping Act, Cap 179
24
see The Supreme Court Practice 1999, 49/1/8. See also Prichard v Westminster Bank Ltd [1969] 1 WLR 547
and Rainbow v Moorgate Properties Ltd [1975] 1 WLR 788.
25
The Supreme Court Practice 1999, 49/1/8.
26
see Ramalingam s/o Muthusamy v Chong Kim Fong [1978] 1 MLJ 83, 83 and the cases cited therein.
27
section 105 of the Bankruptcy Act, Cap.20, S 334 of the Companies Act, Cap.50.
Cap.50 As to when the attachment is
‘complete’, see Re Low Nai Brothers and Company [1969] 1 MLJ 171 and Tye Chwee Hoon v Cayman
Commodities (M) Sdn Bhd [1990] 2 MLJ 23.

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 Garnishee Proceedings

CHAPTER 4 : AFTER THE ORDER

ABSOLUTE IS GIVEN

i) A draft copy of the order in one of the forms in Form 100 should be prepared and given to
the Summons in Chambers counter (currently at the Civil Registry at Apollo Centre) for vetting.
Alternatively, where the garnishee is represented by counsel, counsel should be asked to approve the
order. Once finalised, two copies of the order should be filed. The order will be perfected
immediately upon filing and the sealed copy of the order will be returned to counsel for the judgment
creditor.

ii) Upon receipt of a copy of the order absolute, the garnishee should release the moneys he is
holding to the judgment creditor. The garnishee is then discharged completely from his obligation to
the judgment debtor, to the extent of the amount paid to the judgment creditor pursuant to the order
of court. The discharge is absolute and will not be affected even if the garnishee proceedings are
subsequently set aside or the judgment creditor’s judgment reversed28.

28
O 49 r 8.

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